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Habeas Corpus

The world breathed a collective sigh of relief when-just days into his administration-President Obama issued a series of executive orders to phase out Guantanamo, end torture, and shutter the Bush-era web of secret prisons.

But recent revelations indicate that the Administration's actions have failed to match its lofty rhetoric. According to The New York Times and The Washington Post, the Obama administration continues to use the practice of secret detention at facilities such as the recently identified "black jail" located at Bagram Airfield in Afghanistan.

It is a shocking revelation, not least because of Obama's firm stance against virtually identical practices that occurred under the Bush administration. On the same day that the president called for a winding down of detention operations in Guantanamo Bay nearly a year ago, he ordered the immediate closure of the network of CIA-run "black sites". These secret prisons, where detainees were often held incommunicado before being transferred to other detention facilities or released, saw some of the worst human rights abuses in the "War on Terror." And yet the Obama administration has permitted their apparent reincarnation in Afghanistan.

Because the "black jails" in Afghanistan are managed by military Special Operations forces instead of the CIA, their existence does not technically violate Obama's executive order. Still, the maintenance of such facilities almost certainly runs afoul of U.S. commitments under human rights treaties and the Geneva Conventions. And the message to the world is clear: the Obama administration is willing to treat detention as an international shell game.

Attorney General Eric Holder Jr. announced this morning that the Department of Justice will prosecute some suspected terrorists, held at the Guantánamo Bay military prison, in federal court.

Holder said at a press briefing that Khalid Shaikh Mohammed and four other men, "accused of conspiring to commit the 9/11 attacks" will be prosecuted in federal court. Holder said that Abd al-Rahim al-Nashiri and four other military detainees charged with the 2000 "terrorist attack on the USS Cole," will be prosecuted before a military commission.

"I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years," Holder said. "The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures."

Holder continued, "I want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties. Federal rules allow us to seek the death penalty for capital offenses, and while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."

Holder's announcement drew mostly favorable comment from civil liberties groups that have opposed the use of military commissions.

Human Rights First hailed the "decision to move the trials of the 5 Guantanamo detainees accused in the 9/11 conspiracy from the discredited Guantanamo military commissions and into federal courts to face justice."

The American Civil Liberties Union called the action a "major victory for due process and the rule of law," but also criticized the administration for continuing "to use the illegitimate military commissions system to prosecute some Guantánamo detainees, including the defendant accused in the attack on the U.S.S. Cole."

Today at the Mayflower Hotel in Washington, D.C. the Federalist Society is holding their National Lawyers Convention, but one speaker will be notably absent from the event. Amidst growing calls for a full investigation of torture of detainees in American custody, John Yoo, author of the most infamous of the Department of Justice "torture memos," cancelled his scheduled appearance at the Federalist Society Convention. Yoo's withdrawal is a sign that pressure is building to hold accountable those who provided legal cover for torture.

Yet, while John Yoo has withdrawn from the conference, the lead counsel in his defense, Miguel Estrada, is still scheduled to speak on the panel "Professional Responsibility: The Role of Government Attorneys and the Global War on Terror." An interesting topic given that just last week, Daniel Levin who served from 2004-05 as the acting head of the Office of Legal Counsel in the Department of Justice stated on a panel at American University's Washington College of Law:

"I personally am not opposed to criminal investigation of the conduct of myself and others during the period in question, because I think any government employee is appropriately subject to investigation of their conduct while they are serving in the government."